The babbling brook that flows beneath South Street may be intermittent, but the controversy surrounding it is more perennial. The Conservation Commission (ConsCom) once again dipped their toes into the troublesome waterway on April 27 and finally resolved the water fight by reconfirming their earlier determination that the stream is indeed intermittent.

The seemingly innocuous brook is shown on the U.S. Geological Maps as a “perennial” stream. Such a waterway is protected under the Rivers Act by a 200-foot buffer zone and stringent “no disturbance” rules. Jeffry Kiel, who owns the land abutting Benfield Farms and through whose property the brook flows, thinks otherwise and has signed an affidavit which he feels proves the stream to be “intermittent.” Kiel took photos over a period of time showing the stream in a dried up condition for the required four days a year. The problem is that Kiel has a conflict of interest, since any plans to develop his land will be adversely affected by a perennial waterway. A perennial stream would also trigger more regulation of the Benfield Farms project.

Civil engineer Mark Beaudry of Meridian Associates believes that “all the commission has to do if you’re in agreement with the information [Kiel’s affidavit] is determine whether or not it’s from a competent source. Even if it is in Kiel’s interest to make it an intermittent stream, that does not make Kiel incompetent.” Beaudry believes that if it is shown as a perennial stream on the USGS map, that is only a presumption and you can overcome that presumption by producing a competent source. ConsCom member Kelly Guarino added that if the Streamstats software program came to an opposite conclusion, “then we might question the competent source.” The Streamstats software that ConsCom has run confirms that the stream watershed of 0.34 square miles and flow rate of 0.002 cubic feet per second is below the USGS perennial stream threshold.

South Street resident Ray Kubacki disagrees with the definition of a competent source. “There is a presumption in the law that you have a disinterested party. You can’t have someone who is going to develop the land. It seems a little far-fetched to me.” Chair Peter Burn tried to defuse the disagreement by explaining that one cannot just go out and look at a stream and determine whether it is perennial or intermittent. “We have to rely on competent witnesses because there is no way of doing it in any timely way otherwise. The fact that an abutter may have a vested interest doesn’t disqualify him as a competent source.”

Attorney Greg Peterson, of Indian Hill, pointed out that there is a presumption that each landowner is an expert with respect to his/her own property. “People tend to know their own patch of dirt pretty well.” Even more important, Peterson noted that the commission found this stream to be intermittent back in 2003. “The fact that the stream has been found previously to be intermittent is another relevant line of evidence.” This was the toe-hold that Chair Burn was looking for. “Is there anybody on the commission who would advocate changing the decision that we reached regarding the status of the stream?” Hearing no response, Burn concluded, “We have publicly indicated that we consider the stream intermittent and will indicate so in our ultimate conditions.”

Well location

Another water-related problem that the commission is grappling with is the location of the well on the Benfield property. “Some confusion about who wants it where still exists,” said Chair Peter Burn. Civil engineer Mark Beaudry of Meridian Associates has previously stated that his goal is to maintain the protection areas within the property. The well was positioned solely in order to find a location where both the zone 1 and the larger Interim Wellhead Protection Area (IWPA) are all within the property.

The Conservation Restriction (CR) states that the location of the well be such that it minimizes the impact on users of the property. Certainly Zone 1 must be located on the property, but also, “The IWPA is an encumbrance on somebody else’s property in that it creates what is known as a nitrogen-sensitive area,” said Beaudry. “A septic system cannot be located in Zone 1. The IWPA allows a disposal system, but it’s subject to the Title V nitrogen-sensitive area criteria.”

Burn reminded ConsCom members of recent suggestions that the well be moved further from the upland area in order to not encumber other activities. Beaudry produced a map showing three potential well locations: two new locations circled in red and green as well as the original position, marked in blue. All were located 428 feet away from the disposal system as recommended by the Board of Health. The Zone 1 areas were all within the property, but the IWPA by necessity will extend into the abutter’s property if the well is to be relocated away from the upland area.

Housing Authority Chair Alan Lehotsky explained that there are no formal legal deed restrictions that need to be placed on an IWPA. “Zone 1 is a completely different story, but with an IWPA you just tell the abutters and ask them very carefully not to throw nitrogen in there.” Burn stressed that the ConsCom needs to make a decision now. “Red and green, but not blue, satisfies the Board of Health and is also congruent with ConsCom’s desire to move the well farther from the effluent,” said Burn. The commission agreed. “Think Christmas,” quipped one member.

ConsCom response to ZBA

The Carlisle Zoning Board of Appeals (ZBA) has requested that the ConsCom review and provide a written response to the Benfield Farms 40B comprehensive permit application. The ZBA is required to complete deliberations on the 40B application within 180 days, which ends on May 24. They will meet again on May 5, at which time all boards must have submitted their final written responses. Conservation Administrator Sylvia Willard presented a draft of the ConsCom response containing seven conditions which they recommend be placed on the permit. The conditions included: no waiver of fees related to wetlands hearings; inclusion of any Natural Heritage and Endangered Species Program requirements as well as ConsCom conditions within the ZBA permit conditions; maintain public access to Lot 4 during construction as much as possible; loam and reseed disturbed conservation land with appropriate native grasses; and construction of a sign indicating the location of the public trail parking. ∆